Why the Jones Supreme Court Ruling on GPS Tracking Is Worse Than It Sounds

While the justices unanimously agreed police violated a suspect's Fourth Amendment rights, the Court split on whether the government can track you without a device.

Last fall the Supreme Court heard a case concerning whether police in Washington DC were in violation of the Constitution when they tracked the car of a suspected drug dealer's wife using a GPS device they installed on the car. Today the Court decided that the police did violate the Fourth Amendment, which protects people from "unreasonable search and seizures" and it did so unanimously.

But that's about the extent of the Justices' agreement. They split among three different opinions, and that of the majority -- authored by Justice Scalia and signed by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor -- is as narrow as can be, resting on the specifics of this particular case but saying little as to whether GPS tracking is more broadly permissible. The government's act of physically attaching the device to the undercarriage of the car is a physical trespass, the Court held, something clearly prohibited by the Fourth Amendment as it was originally understood in the 18th century. But, and here is the decision's narrowness, it "may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy. ... [The] present case does not require us to answer that question." Meaning, in the majority's opinion, the question of GPS tracking is still up in the air.

The real meat, for those interested in that question, comes in two concurring opinions, one from Justice Sotomayor (who also signed the majority's) and another authored by Justice Alito and signed by Justices Ginsburg, Breyer, and Kagan. The problem with Scalia's opinion, Alito writes, is that it overly relies on originalist reasoning -- that is, whether the case in question comports with the Fourth Amendment as the Framers meant it. But that interpretation of the Fourth Amendment -- one "based on 18th-century tort law" -- is insufficiently illuminating for what to do with today's technologies, technologies that allow for a level of tracking never imagined by James Madison and others.

As Alito writes, in one of the decision's most incisive passages, "In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. ... The surveillance at issue in the case -- constant monitoring of the location of a vehicle for four weeks -- would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources." Today, we need law to make up for the protections that technological difficulties once provided.

Alito goes on to say that the logical end of the Court's reasoning is a bit laughable. So it's possible that attaching something to a car is unconstitutional, but tracking their every move -- as long as you do not technically trespass while installing the device -- is just fine? This is why relying on 18th-century understandings of the Fourth Amendment fail to help us with modern questions.

The alternative standard for evaluating a Fourth Amendment violation, Alito writes, is a test introduced in a case called Katz v. United States, which was decided in 1967. In that case, which examined whether the right to privacy extends to public telephone booths, the Court said that the right extends to places where a reasonable person has an expectation of privacy. In Alito's view, long-term GPS tracking for "most offenses" falls beyond the scope of what a reasonable person would expect.

But this standard too has problems, "Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes." How can courts evaluate whether an expectation is reasonable?

Perhaps they shouldn't have to, is Alito's response. Perhaps courts are the wrong savior for our privacy concerns. Legislation -- from Congress -- may be a better tool. This, Alito explains, is what happened in the case of wiretapping, which has been regulated by statute since 1986. So far, however, on the question of GPS tracking, Congress and most states have not taken any action.

Writing alone, Justice Sotomayor makes the strongest case for updating our Fourth Amendment jurisprudence to protect privacy in this digital age. Sure, she says by way of explaining her signature on the majority opinion, the physical trespass of attaching the GPS device was a violation of a Fourth Amendment. But, "[of] course, the Fourth Amendment is not concerned only with trespassory intrusions on property." This, she says, "reflects an irreducible constitutional minimum."

But since "physical intrusion is now unnecessary to many forms of surveillance," the existing safeguards no longer necessarily "constrain abusive law enforcement practices." She warns if the Fourth Amendment fails to protect privacy, the effects could squash other freedoms, such as expression, as people worry about government monitoring them more constantly. In particular, Sotomayor writes that the area of Fourth Amendment law known as the third-party doctrine needs revisiting.

Traditionally, the third-party doctrine has meant that you have "no reasonable expectation of privacy in information voluntarily disclosed to third parties." But today we share information with a third party (often Google) with every email we send, every document we store in the cloud, and nearly every website we visit. Sotomayor writes that "This approach is ill suited to the digital age. ... I for one doubt that people would accept without complaint the warrantless disclosure of every Web site they had visited in the last week, or month, or year." Instead she says, we need to stop treating "secrecy as a prerequisite for privacy."

Combined, Sotomayor's and Alito's concurrences give us a picture of the more dramatic revisions to our Fourth Amendment understanding that would be required to protect privacy in our time. Scalia's opinion doesn't get there but, at least, in its narrowness, it doesn't take us in the wrong direction either.

Image: Wikimedia Commons.

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Rebecca J. Rosen is a senior editor at The Atlantic, where she oversees the Family and Education sections. She was previously an associate editor at The Wilson Quarterly.